posted at 5:21 pm on June 28, 2012 by Allahpundit

Says Amanda Carpenter, “If Obamacare was presented as a tax, it would have never passed.” Certainly true; the White House itself was careful to dismiss that argument in its talking points on O-Care in order to make Blue Dog Dems more comfortable with the bill. And yet here we are. By the numbers: 26 million people, 70-75 percent of whom make less than $200,000 a year, are now on the hook for a fat new “tax” thanks to a guy who swore he’d avoid new taxes on the middle class. Be sure to tell an undecided centrist friend before November.

Standing with White House chief of staff Jack Lew and looking at a television in the “Outer Oval” featuring a split screen of four different networks, the president saw graphics on the screens of the first two cable news networks to break the news — CNN and Fox News Channel — announcing, wrongly, that he had lost.

Senior administration officials say the president was calm.

A couple minutes later, White House counsel Kathy Ruemmler came to Outer Oval and gave him two thumbs-up. Ruemmler had gotten the correct information from a White House lawyer at the Supreme Court and from SCOTUSblog.com.

Some righties are arguing this afternoon that this decision was actually a big win for conservatives because we did, after all, carry the day on the Commerce Clause. Don’t get caught up in O-Care being upheld, as catastrophic as that might be, they say. Focus on the fact that the biggest weapon in the left’s constitutional arsenal for regulating the economy is a little smaller now than it was yesterday. Is it really smaller, though? For one thing, there have been “landmark” rulings imposing limits on the Commerce Clause before that never went anywhere precedentially afterward. The Lopez case in 1995 was supposed to herald a new golden age of limited federal power. Ten years later, it was politely distinguished away in the terrible, terrible Raich ruling — and that was without any conservatives on the Court being replaced by liberals in the interim. Beyond that, who cares whether Congress has to use the taxing power instead of the Commerce Clause to impose a mandate? To use the ol’ broccoli example, it’s apparently now unconstitutional for Congress to order you to buy veggies on penalty of paying a fine but it is constitutional for them to impose a “tax” on people who don’t buy veggies. You’re being forced into commerce either way; the distinction’s mainly semantic. As Jacob Sullum, who’s lamented the lameness of “Commerce vs. tax” formalism before, puts it, “We’re not locking you up for disobedience, we’re locking you up for failing to pay the tax on disobedience.” Yay?

The only compelling reason to be happy about the decision, it seems to me, is that by forcing Congress to frame future power grabs as “taxes,” it’ll be harder to pass them. Then again, this case stands for the proposition that Congress doesn’t have to frame them that way; the Court will re-frame the bill for them and uphold it on tax grounds even if the government explicitly and repeatedly denies that what it’s engaged in as taxation. And as for the supposedly valuable Commerce Clause precedent that was set here, I think con law Prof. Douglas Laycock has it right:

Laycock, a constitutional law professor at the University of Virginia, says it was unexpected that the Supreme Court made a distinction between activity and inactivity. But, he says, it’s hard to think of a situation where this will matter much…

What’s more, the fact that the individual mandate has been interpreted as a tax still gives lawmakers plenty of leeway. Congress might not be able to compel all Americans to purchase broccoli under the Commerce Clause. But, Laycock says, Roberts’ ruling has shown a way around this. “If Congress ever does need to mandate purchase of a product or service again,” he notes, “it can impose a tax for failing to buy it.”

Some conservatives seem to agree that the impact will be small. “Holding the mandate exceeds the scope of the Commerce and Necessary and Proper Clauses poses no threat to any other existing federal program or law that was not already in jeopardy,” writes Jonathan Adler, a law professor at Case Western Reserve University.

Read the opinion and you’ll find that Roberts and the other four conservatives stood by the holding in Raich. If they had tossed that and said it was wrongly decided, that would be a provocative ruling worth celebrating insofar as it might really herald a broad new trend towards limiting Congress’s regulatory power under the Commerce Clause. They didn’t. Not much of a win. And besides: What good is the prospect of future victories if you’re losing on cases as epochal as the ObamaCare decision? It’s like losing the Super Bowl but celebrating afterwards because your defense played well enough to make you think you might win some games next season. Who cares?

Needless to say, if O wins in November and gets to replace one of the conservatives on the Court, the exciting new precedent forbidding mandates under the Commerce Clause likely won’t live to see the end of the decade. Exit quotation via Timothy Carney: “They’ll trample Roberts’ Commerce Clause firewall when the need to. But his tax trick means they may never need to.”

Blowback

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